250 A.D. 319 | N.Y. App. Div. | 1937
Petitioner, a war veteran, was appointed an assistant attendance officer by the board of education of the city of New York on February 26, 1935, from an eligible list promulgated as the result of an open competitive examination conducted for that position. He retained the place until March 31, 1936, when his services were discontinued and his name was placed upon a preferred eligible list. Upon the claim that under section 22 of the Civil Service Law the board of education had unlawfully removed him, he instituted this mandamus proceeding to compel his reinstatement.
The situation which compelled the discontinuance of petitioner’s services arose as follows: Defendant had appointed sixteen persons as assistant attendance officers from an attendance officers’ eligible list established prior to May 15, 1932. The sixteen appointees held their positions for some time. By chapter 146 of the Laws of 1933 (Education Law, § 871-b) the Legislature attempted to revive for a period of four years all eligible lists prepared by the board of examiners of the board of education which were in force on May 15, 1932. Among such lists was that for the position of attendance officer upon which were the names of these sixteen persons. Shortly before March 1, 1935, these sixteen received appointments as
It seems to us that following the decision of our highest court in the Hurley case, the board of education acted fairly and equitably in treating the employees affected in the manner it did. All concerned were in the same bureau of the board of education, that is, the bureau of compulsory education, school census and child welfare. (Education Law, § 871-a.) In discontinuing the services of petitioner and thirteen others similarly situated so as to make room for the sixteen men who had been invalidly appointed attendance officers, defendant was merely rectifying the error committed when it had acted in good faith and pursuant to legislative enactment. The appointments as attendance officers, as it subsequently developed, were illegal and consequently of no effect. Nor was there at any time, as petitioner asserts, a demotion of the sixteen illegally appointed. As they never had at any time lawfully held the higher positions, there could be no demotion when they were
The object of the statute (Civil Service Law, § 22, subd. 1) is to protect a veteran from arbitrary removal by requiring notice and a hearing where it is sought to oust him from his position for personal reasons, political reasons, bias and the like, in order to give it to another, but every separation from service is not tantamount to a removal. It has been repeatedly held that when a position is abolished for reasons of economy, or for lack of work or appropriation, the veteran loses his right to be retained. (Matter of Clancy v. Halleran, 263 N. Y. 258; Matter of Devins v. Sayer, 233 id. 690; People ex rel. DeVito v. Sayer, Id. 615; Blodgett v. Board of Supervisors, etc., 246 App. Div. 188.) So, too, where a veteran obtains a position occasioned by an illegal promotion of another to a higher grade of the same position, he loses his right to retain his position when the mistake is discovered and in good faith corrected. “ A public official is not obligated to discharge other employees in order to open a position for a veteran.” (Matter of Clancy v. Halleran, supra, at p. 262.)
As to petitioner’s contention that relief workers are doing the same type of work as was done by petitioner before his suspension from service, and that he is, therefore, entitled to be restored to service pursuant to the provisions of section 31-b of the Civil Service Law (added by Laws of 1936, chap. 386), it appears that there were thirty-two assistant attendance officers in the department of education when petitioner received his appointment as assistant attendance officer on February 26, 1935, and that the same number are still so employed. There is no showing by petitioner that another
Upon principles of justice and fair dealing, and under the law, we think that the board of education was right in restoring to their former positions the assistant attendance officers who had been mistakenly appointed to the higher station of attendance officer following legislative authority and that, in the circumstances of this case, defendant violated no right of petitioner when it discontinued his services to provide for the return to his position of one who had been illegally promoted to a higher position in the same department.
For the foregoing reasons, a peremptory order of mandamus should not have been granted.
The order granting petitioner’s motion for a peremptory mandamus should be reversed, with twenty dollars costs and disbursements, and the said motion denied.
The appeal from the order denying motion for reargument should be dismissed.
Martin, P. J., McAvoy, O’Malley and Townley, JJ., concur.
Order granting motion for a peremptory mandamus unanimously reversed, with twenty dollars costs and disbursements, and said motion denied. Appeal from order denying motion for a reargument dismissed.